MORE NORDYKE BRIEFS FILED

[CDMichel]

MULTIPLE LEGAL BRIEFS FILED IN NORDYKE v. ALAMEDA; NINTH CIRCUIT CASE MAY DETERMINE THE STANDARD OF REVIEW FOR SCRUTINIZING LAWS FACING SECOND AMENDMENT CHALLENGES

August 18, 2010

Today multiple briefs have been filed in the Ninth Circuit Court of Appeals supporting gun show owners who have challenged an Alameda County ordinance banning firearms on county property, including the county fairgrounds. These include amicus briefs by the National Rifle Association, CATO Institute, Second Amendment Foundation, and Calguns Foundation, as well as the brief for the plaintiffs, the Nordykes. Yesterday the California Rifle and Pistol Association Foundation (CRPAF) filed its amicus brief. Briefs on behalf of the County are being filed today as well.

Copies of the briefs are being posted at www.calgunlaws.com as they become available, aloing with an article about the case. Although you need not register to read the briefs, I would be grateful if those who visit the site register to receive future litigation updates and news items.

[dantodd]

Yay! Let's see gun shows back in Alameda ASAP.

[Crom]

Thank you for the update. This is very encouraging.

[wash]

There are no links for the CGF brief or the Nordyke brief.

[yellowfin]

That case must have more briefs by now than Fruit of the Loom.

[OleCuss]

Originally Posted by wash

There are no links for the CGF brief or the Nordyke brief.

He indicated he'd put up the briefs as they become available. They may simply not yet be available.

[sbrady@Michel&Associates]

Originally Posted by wash

There are no links for the CGF brief or the Nordyke brief.

The link for the CGF brief worked when I checked a minute ago, as did the link for the NRA brief. The CRPA Foundation brief is available on the second article down. And, I do not think the Nordyke's brief has been made available yet.

[Window_Seat]

The following links are on CalgunsLaws.com

Amicus Brief from Calguns Foundation

Amicus Brief from the NRA

Erik.

[OleCuss]

I followed the CGF brief and enjoyed it - and I think it makes some very good and valid points. However, if I were the judge and had the leeway that I do as a non-judge, then I'd pretty thoroughly trash a bunch of it.

And no way am I going to say why on an open forum.

[wash]

I look forward to the Nordyke brief.

So far the other three are second amendment heavy.

I want to see the first amendment argument.

It was nice to see that the NRA kept Clement around for this brief.

The CGF brief is great with the graphs and crime data.

I think we'll have a gun show by next summer!

[Paul E]

The LCAV Brief is such a trainwreck.

Favorites include: creative use of italics on page 11, and

As this panel previously noted, the fairgrounds is a
“gathering place[] where high numbers of people might congregate,” and where a
shooter easily could do great harm (and in the past has).

[hoffmang]

CGF brief is also available in this thread: http://www.calguns.net/calgunforum/s...d.php?t=333298

-Gene

[PatriotnMore]

Thank you, everyone involved for the briefs filed. However this is the Ninth Circuit, what are the chances any brief in support of a pro gun issue will see a positive outcome, especially since when they couldn't make it stick under McDonald, they went to sensitive places as the vehicle?

I mean it appears pretty overt to me, they will turn around and use any excuse to justify a loss for the Nordykes, and throw out all logic concerning facts.

[bwiese]

Originally Posted by PatriotnMore

Thank you, everyone involved for the briefs filed. However this is the Ninth Circuit, what are the chances any brief in support of a pro gun issue will see a positive outcome, especially since when they couldn't make it stick under McDonald, they went to sensitive places as the vehicle?

We've done pretty well in the 9th so far. This case has lived far far beyond expectations due to a mix of the quality of legal work and the substantive issues addressed.

[OleCuss]

Originally Posted by PatriotnMore

Thank you, everyone involved for the briefs filed. However this is the Ninth Circuit, what are the chances any brief in support of a pro gun issue will see a positive outcome, especially since when they couldn't make it stick under McDonald, they went to sensitive places as the vehicle?

I mean it appears pretty overt to me, they will turn around and use any excuse to justify a loss for the Nordykes, and throw out all logic concerning facts.

Judges really don't like having their decisions reversed.

In this case, if the 9th Circuit rules against strict scrutiny you can expect an appeal to SCOTUS and for SCOTUS to reverse and remand. That would be the legal equivalent of a slap in the face and being called stupid. They usually don't want that to happen.

[AndrewMendez]

CGF FTW!

[kf6tac]

Fodder for the unintentional joke of the day, from the Nordykes' brief (emphasis mine):

A recent en banc panel of this Court struck down regulations of expressive conduct on pubic property on mere intermediate scrutiny grounds . . . .

Aside from that and an incorrect use of the phrase "begs the question," still a good read.

[OleCuss]

Originally Posted by kf6tac

Fodder for the unintentional joke of the day, from the Nordykes' brief (emphasis mine):



Aside from that and an incorrect use of the phrase "begs the question," still a good read.

That is very funny! Thank you.

[wash]

The Nordyke brief was a good read.

Given this case’s present posture and the recent developments in
Second Amendment law, it is surprising the County has not requested
that the matter be returned to the trial court for discovery and further
litigation. The Appellants agree that the matter may be resolved by
this Court without a remand to the trial court2, but the consequence of
that development has to be a judicial finding that the County has
offered no evidence to support its bald assertion that banning gun
shows at the Fairgrounds, by banning guns at gun shows, will reduce
crime in Alameda County.

How about them LCAV lawyers?!!

[wash]

I should also mention that SAF's brief written by Alan Gura is very nice.

I don't know if this is a good thing in legal circles but it's easy to read. I always enjoy reading his filings.

The LCAV brief claims that intermediate scrutiny should be applied and that reducing gun violence is a valid government interest.

Too bad they can't enter any evidence to support that and all of the quotes about how the regulation's author was just trying to find a way to ban the gun show...

[Maestro Pistolero]

Originally Posted by Paul E

The LCAV Brief is such a trainwreck.

Favorites include: creative use of italics on page 11, and

Quote:
As this panel previously noted, the fairgrounds is a
“gathering place[] where high numbers of people might congregate,” and where a
shooter easily could do great harm (and in the past has).

Oh, my GOD. LMFAO.

[Maestro Pistolero]

Gura's SAF brief is stellar, as usual. He demonstrates an outstanding, scholarly comprehension of the various judicial approaches that might be employed by the court. He deftly rules out the ones that are irrelevant, leaving the pathway clear to only apply strict scrutiny, or avoid the question of scrutiny altogether.

After reading this brief, I think the gun show has a very bright future.

Unless I am misreading the sentence somehow, I did find what I think to be a typo in the SAF brief; I would correct it thusly:

Heller’s lesson, that the Second Amendment constitutionality of at
least some gun laws some may be resolved without reference to a level of scrutiny, has evaded some courts.

[sbrady@Michel&Associates]

Just wanted to let everyone know that the Brady Center Amicus Brief, the one I am sure you have all been waiting for, is now available on www.calgunlaws.com with all the others. There are nine briefs posted there in total as of right now.

[hoffmang]

Originally Posted by sbrady@Michel&Associates

Just wanted to let everyone know that the Brady Center Amicus Brief, the one I am sure you have all been waiting for, is now available on www.calgunlaws.com with all the others. There are nine briefs posted there in total as of right now.

Let's quote McDonald for Brady:

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home in- creases or decreases gun deaths and injuries. Id., at 11, 13–17
.
The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.

Brady. Old dog. No new tricks.

-Gene

[Lex Arma]

Originally Posted by kf6tac

Fodder for the unintentional joke of the day, from the Nordykes' brief (emphasis mine):



Aside from that and an incorrect use of the phrase "begs the question," still a good read.

Honest your honor, the brief was proof-read several times by my colleagues in the adult entertainment firms. They didn't see anything amiss.

[OleCuss]

I just read the LCAV brief. . .

Not being a lawyer I may have missed something, but it seemed pretty tenuous at best. My comments aren't out of an abundance of certitude in my opinion but in hopes that the legally competent minds will tell me how far off base I really am.

Let's see. . .

They did a lot of hand-waving as they reached back to Heller which incorporated the 2A against D.C. and largely ignored McDonald as it was applied to the states (making it a more directly applicable precedent - especially since it is more recent).

They then tossed out the entire scrutiny concept in order to come up with their own categorical system and went back to truly ancient cases and cited the previous Nordyke panel's decision from prior to McDonald in order to use a convoluted argument to make it somehow work out. Now the idea of repeatedly citing the 9th Circuit panel makes good sense to me politically - but that's about the best I could get out of it as a non-lawyer.

Well, I suspect this was as good as it's going to get. I think Strict Scrutiny has pretty good odds based on Nordyke.

I couldn't get the Brady brief to open in FireFox. It seems not to play nice with some of your links so I'll try another browser.

Edit: Note that I mention the FireFox problem not so that the link will be fixed but so that others who use FireFox and may have the same issue will know to try another browser - I'm having no problems in Internet Explorer.

[Lex Arma]

I will send out a personal thank you to all amici tomorrow, but for now I am truly grateful to all who supported this effort. I thank you. My clients thank you.

[OleCuss]

Just read the Brady brief. I'm dumbfounded!

Is it really as stupid as I thought it was? I mean, I just gained new respect for LCAV!

[hoffmang]

Originally Posted by OleCuss

Just read the Brady brief. I'm dumbfounded!

Is it really as stupid as I thought it was? I mean, I just gained new respect for LCAV!

Yeah. Sad thought isn't it?

-Gene

[sbrady@Michel&Associates]

Originally Posted by hoffmang

Let's quote McDonald for Brady:


Brady. Old dog. No new tricks.

-Gene

Geez Gene, when you quote me and then smack down "Brady" like that it makes me consider changing my name again, but then I think about how bad it must rub them to know one of their namesake is playing for the other team.

[2Bear]

So this case is coming down to "sensitive place" status?

I take it a school ground is a sensitive place. On what merits are they arguing that the fairgrounds are a sensitive place, children present?

[hoffmang]

Originally Posted by sbrady@Michel&Associates

Geez Gene, when you quote me and then smack down "Brady" like that it makes me consider changing my name again, but then I think about how bad it must rub them to know one of their namesake is playing for the other team.

Sean - heh.

-Gene

[kf6tac]

Originally Posted by 2Bear

So this case is coming down to "sensitive place" status?

I take it a school ground is a sensitive place. On what merits are they arguing that the fairgrounds are a sensitive place, children present?

As I read it:

"Ummm, there are lots of people there."

[CalNRA]

Originally Posted by Brady Center Brief

V. ANGLO-AMERICAN JURISPRUDENCE HAS ALWAYS DEFERRED TO
STATES’ BROAD POWERS TO PROTECT THE PUBLIC BY REGULATING
FIREARMS

I lol'ed

[2009_gunner]

The 27 page LCAV brief essentially boils down to their statement:

The case for Alameda County’s fairgrounds being a “sensitive place” historically beyond the scope of the right to keep and bear arms is remarkably straightforward...the fairgrounds is a “gathering place[] where high numbers of people might congregate,” and where a shooter easily could do great harm (and in the past has). The fairgrounds thus fits perfectly within the historical “sensitive places” exclusion and is outside the bounds of the Second Amendment.

So anytime there are a "high number" of people gathered, you lose a fundament right?! They don't even say what a "high number" is (10,100,1000?). Pathetic.

ETA: Actually, it's even worse. They say it's were a high number might congregate. I suppose we only have this fundamental right at the poles and uninhabited islands.

[2Bear]

Originally Posted by 2009_gunner

So anytime there are a "high number" of people gathered, you lose a fundament right?!

LOL.

I suppose we only have this fundamental right at the poles and uninhabited islands.

Where the polar bears and sharks are harmless.

From the NRA brief:

See Nordyke v. King, 563 F.3d 439, 443, vacated 575 F.3d 890 (9th Cir. 2009) (noting that author of ordinance “declared she had ‘been trying to get rid of gun shows on Count[y] property’ for ‘about three years,’ but she had ‘gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio’”).

Grrrrrr.

[Maestro Pistolero]

On what merits are they arguing that the fairgrounds are a sensitive place, children present?

On no merits whatsoever. As Gura points out in the SAF brief, not even Alameda is alleging the fairground to be a sensitive place, as they allow licensed CCW. The sensitive place argument is null and void in this case.

[RKV]

Brady's Nordyke amicus is weak, contradictory, and relies on cites that won't pass minimal review. For instance ...

"Second, Heller “implicitly, and appropriately, reject[ed]” a strict scrutiny standard. Heller, 128 S. Ct. at 2851 (Breyer, J., dissenting) (“Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible”)."

Breyer's arguments LOST Brady bumpkins. I think I'd rather rely on the McDonald majority...

"In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

And as Judge Urbina wrote in Heller 2's denial of summary judgment in favor of the plaintiff...

Quoting "United States v. Darrington, 351 F.3d 632, 635 (5th Cir. 2003) (stating that “if [a court] intended to recognize that the individual right to keep and bear arms is a ‘fundamental right,’ in the sense that restrictions on this right are subject to ‘strict scrutiny’ by the courts and require a ‘compelling state interest,’ it would have used these constitutional terms of art”))."

Well 9th Circuit, unless you want to be reversed, it's strict scrutiny. The McDonald majority opinion is abundantly clear. Back to the drawing board guys.

On a related note (non-Nordyke) I'm not sure what Mr. Heller's options are at this point, but if it went back to Judge Urbina, he'd pretty much HAVE to reverse himself.

[yellowfin]

Originally Posted by 2009_gunner

So anytime there are a "high number" of people gathered, you lose a fundament right?! They don't even say what a "high number" is (10,100,1000?). Pathetic.

ETA: Actually, it's even worse. They say it's were a high number might congregate. I suppose we only have this fundamental right at the poles and uninhabited islands.

That's basically why they don't mind RKBA accessible in rural areas and lower population density states. As far as they're concerned that's uninhabited area where they personally will never go. As I've said before, it's segregation come to life again.

[Wherryj]

Originally Posted by CDMichel

MULTIPLE LEGAL BRIEFS FILED IN NORDYKE v. ALAMEDA; NINTH CIRCUIT CASE MAY DETERMINE THE STANDARD OF REVIEW FOR SCRUTINIZING LAWS FACING SECOND AMENDMENT CHALLENGES

August 18, 2010

Today multiple briefs have been filed in the Ninth Circuit Court of Appeals supporting gun show owners who have challenged an Alameda County ordinance banning firearms on county property, including the county fairgrounds. These include amicus briefs by the National Rifle Association, CATO Institute, Second Amendment Foundation, and Calguns Foundation, as well as the brief for the plaintiffs, the Nordykes. Yesterday the California Rifle and Pistol Association Foundation (CRPAF) filed its amicus brief. Briefs on behalf of the County are being filed today as well.

Copies of the briefs are being posted at www.calgunlaws.com as they become available, aloing with an article about the case. Although you need not register to read the briefs, I would be grateful if those who visit the site register to receive future litigation updates and news items.

I registered, but I found the * on each field, with the footnote below stating "the fields marked with * are required" to be a bit humorous. They ALL were marked. Wouldn't it have been easier to have merely stated "all fields are required"?